January 2011

We previously blogged about Philadelphia based law firm Cozen O’Conner’s efforts to obtain a guidance as to how to pay-out the profit sharing plan of one of their partners who was in a same-sex marriage. Cozen was presented with a beneficiary designation form which appears to grant the partner’s parents the benefit.

Muddying the issue was that Ms. Farley’s marriage to Ms. Tobitz occurred in Toronto in 2006; a marriage that was not recognized by her home state of Illinois or Cozen’s home state of Pennsylvania.

But no longer – today, Illinois’s governor signs into law the legal recognition of civil unions. Beginning in June 2011, the state will begin issuing licenses to both heterosexual and homosexual partners.

How this will impact the beneficiary issue is unclear since even if the type of union Ms. Farley and Ms. Tobitz had is now recognized by the state, Ms. Farley’s death may preclude a legal recognition of its existence. On the other hand, it is possible that Ms. Tobitz may seek validation of her Canadian marriage under Illinois law, thereby establishing herself as Ms. Farley’s legal heir – to the exclusion of Ms. Farley’s parents.

In October, 2010, Governor Rendell signed into law Act No. 85 which amended Title 15 and 20 of the Pennsylvania Code to address the death of a party during divorce proceedings. Previously, the Divorce Code was amended to reflect the fact that if a party to a divorce dies after grounds have been established, then equitable distribution is to proceed as normal with the decedent’s estate stepping into the shoes of the deceased party and that the Court should apply the normal equitable distribution factors in deciding the case.

In updating the Decedent’s Estate and Fiduciary’s Code, not only is this area of law reflective of the current Divorce Code, but it also spells out more specifically for estate purposes the manner in which a divorcing party’s estate is to be distributed during litigation. Specifically, Title 20 was amended to reflect the fact that a spouse will have no right or interest in the real or personal estate of the other spouse if they die during the course of the divorce proceedings and after grounds have been established for the divorce. Furthermore, Section 2507 now reflects that any provision in a party’s Will that favors or relates to that party’s spouse shall “become ineffective for all purposes unless it appears from the Will that the provision was intended to survive a divorce…” This Section goes on to give exceptions to this rule, including situations in which the parties are divorced prior to the creation of the Will (which would reflect specific intent to allow the benefit to pass to the ex-spouse) or if the provision was specifically intended to survive the divorce. 

Furthermore, if there is a conveyance that is revocable by a conveyor at the time of that person’s death that favors or relates to the conveyor’s spouse, this conveyance will become ineffective if the conveyor dies during the course of the divorce proceedings, no Divorce Decree has been entered, and grounds have been established.  In other words, if a spouse dies and has designated the other spouse as the beneficiary of a life insurance policy, retirement plan, or other type of asset, that spouse may not receive the proceeds from those accounts if a Decree of Divorce has been entered or the divorce proceedings are pending. The exception, as with previous sections, is that there must be language to indicate that the payments were intended to survive the divorce. The practical application of this provision is that a codicil to a Will or revised benefit designation form is no longer necessary to preserve this benefit from being distributed to an estranged spouse; the Code now severs the passing of that benefit to the estranged spouse, unless the conveying spouse specifies otherwise. As such, a spouse who has beneficiary designations will find them nullified if the other party dies while the divorce is pending. The beneficiary designation will be declared ineffective unless specifically intended to survive the divorce. 

Though the estate code may offer safeguards against assets being passed to an estranged spouse, it does not diminish the importance of changing the beneficiary designation early in the divorce proceeding, particularly if grounds for divorce – the triggering event for the Divorce and Estate Codes – have not yet been established. Consult with an attorney to determine what can be done to ensure that your benefits pass to those heirs who reflect your present intentions rather than past intentions. 

Philadelphia based law firm, Cozen O’Connor, has asked the Eastern District of Pennsylvania for guidance as to the validity of a beneficiary designation form submitted by the parents of a deceased partner in their Chicago office. The parents of Ms. Sara Ellyn Farley, Esquire are seeking to receive the proceeds due to their daughter from the firm’s Profit Sharing Plan. Complicating this issue is that Ms. Farley was married to Ms. Jennifer Tobits in Toronto in 2006 and Ms. Tobits has asked that the proceeds be distributed to her as the plan holder’s surviving spouse.

Many plans of this nature have a default distribution provision in that if there is not a named beneficiary, then the proceeds from the plan pass to the surviving spouse, then parents, etc. In this instance, Ms. Farley’s parents presented Cozen with a beneficiary form dated one day before Ms. Farley’s September 2010 death which identifies themselves as the beneficiaries of the Profit Sharing Plan and identifying Ms. Farley as “single”.  This designation form is unsigned by Ms. Farley but purportedly has Ms. Tobits’ signature relinquishing her role as beneficiary.

Under most insurance or retirement/investment plans in which a beneficiary may be designated, it requires the signature of the named beneficiary before beneficiary designations can be changed to another party. The reason for this is, essentially, that the named beneficiary has certain property rights in the asset and cannot knowingly have them removed without their authorization. Much of this restriction is based upon the rules of the Plan, ERISA law, and other state and federal statutes.

What makes this situation interesting is that it appears that Ms. Farley had not filed a valid designation form with Cozen O’Connor prior to her death. The subsequent form which was provided by her parents, contained conflicting information of Ms. Farley being “single” but also purportedly has the signature of Ms. Tobits relinquishing her claim as beneficiary. Finally, we have the parents’ position, as articulated by their counsel, that under the Defense of Marriage Act, Ms. Farley and Ms. Tobit’s marriage is not valid. The Defense of Marriage Act essentially permits states to refuse to offer a legal same-sex marriage in one state the “full faith and credit” of validity in another state. Worth noting, however, is that in July 2010 a U.S. District Court Judge found that Section 3 of the Defense of Marriage Act, which defines “marriage” and “spouse”, violated the Equal Protection Laws guaranteed by the Fifth Amendment of the U. S. Constitution. This ruling was appealed by the U.S. Department of Justice in October 2010 and the appeal will eventually be heard by the First U.S. Circuit Court of Appeals located in Boston, Massachusetts. 

For Cozen O’Connor’s part, they are not asking the Eastern District to determine whether or not Ms. Tobits’ and Ms. Farley’s marriage was valid, but for Ms. Tobits and Ms. Farley’s parents to be compelled to litigate their dispute between each other and that Cozen undertake to distribute the Profit Sharing Plan proceeds to the appropriate party.

When you consider the facts thus far presented, you have Ms. Farley’s parents offering an unsigned designation form identifying her as “single,” pre-dates her death by a day, and lists her same-sex spouse as agreeing to relinquish a right in the plan which she may not have based on a Federal law currently under appeal. This is shaping up to be quite a case.

Although it is unlikely the Eastern District of Pennsylvania will touch the marriage issue, issues such as the right to designate a same sex spouse as beneficiary or for a same-sex spouse to claim default spousal benefits under the terms of the plan may ultimately be the context in which same sex marriage is dealt with judicially and legislatively in Pennsylvania.  Having already seen some Pennsylvania municipalities such as Allentown extend medical benefits to same sex partners, the extension of employment benefits may be the vanguard issue for addressing same sex marriage in Pennsylvania.   

If you are interested in reading the full article, it can be found in the January 7, 2011 issue of the Legal Intelligencer, Vol. 243, No. 5, and is written by Gina Passarella.

We have previously noted that there are few cases more vexing than those involving one parent deciding to leave this state with a child and move to another to pursue what he/she perceives as better pastures. Clear case law has developed since 1990 that set a standard for when relocation should be granted and setting forth that once the Commonwealth has jurisdiction over a case a parent wishing to take the children to live out of state needs to file and meet some burdens to sustain their position. Over time this area of judge made law has produced many opinions, not all of which can be seen as consistent. But in a statute passed in November, 2010 and effective on January 26, 2011 the legislature has stepped in and issued some rules and procedures of its own. Ordinarily, the word of the elected legislature is the final one but under a doctrine known as separation of powers, it has been the historic province of the Courts to regulate procedures of law while the General Assembly is delegated the responsibility of deciding the “substance” of Pennsylvania law.

Much of the new statutory law is not different than what has evolved as judicially written law since the 1990 case, Gruber v. Gruber 583 A.2d 483(Pa. Super. 1990).   23 Pa. C.S. 5337 now makes clear that relocation requires either consent of all persons with custodial rights to a child or judicial approval. Those aspiring to get court approval to move with the child to another state are now required to initiate the process by serving a “notice” on other parties with custodial rights stating their intention to relocate not less than 60 days before a proposed move or 10 days after the person learns of a need to relocate (e.g. employer mandated transfer). The ten day notice applies only where the party wishing to move had no reason to know of the transfer and relocation cannot be delayed for the sixty day period required.

The notice must be very specific on some subjects. It must identify the new address where the parent intends to move (and a mailing address if it is not the same) and who else will be residing at this new address including the ages of those individuals. The new phone number must be provided if available. There must be a stated reason for the relocation. The proposed date of the move must be in the notice, as well as the identity of the new school and district. There is to be a proposed order if the existing order needs to be modified as part of the relocation. These are all good things to have adopted. Unfortunately, the statute says they are to be provided “if available” which affords a basis to file a barren notice and claim insufficient time to research these issues. This would however enhance arguments that the move is not thought out and should be rejected for that reason.

The notice does not have to be filed with the court although it certainly would help if it was since that establishes a clear date to measure the sixty days (or ten days) from. It is to be mailed certified with a return receipt. The notice is to contain a “counter-affidavit” which is actually specified in the statute. Unless the non-relocating parent files this counter-affidavit with the court within 30 days of receipt of the notice to relocate, the non-relocating parent shall be “foreclosed” from objecting to the relocation. If the objection is filed on a timely basis, the non-relocating parent is also empowered to ask that the Court enter an order denying the relocation. The objection must be verified as to its truth and requires specification if the objection is to the relocation or any modification sought as part of the relocation (as in where the distance makes the old schedule unrealistic).

If no timely counter-affidavit is filed the party wishing to move must file an affidavit that service was properly made and that the time period allowed has passed without filed objections. The return receipt card is also to be part of the affidavit and there is also to be a petition to confirm the relocation with a proposed modification order where necessary. Where an objection is properly filed to the relocation or the modification of the custody order, a hearing is to be scheduled to consider the request. The hearing is to be expedited and held before relocation is granted unless the court makes a finding that exigent circumstances justify a finding that relocation must precede the hearing.

In deciding a contested relocation case, the factors set forth in Section 5337(h) the factors are essentially the same that have evolved under the case law, such as the nature, quality and duration of the child’s relationship with each of the parents involved. Part of that is also the age and developmental needs of the child or children involved, taking into account the child’s needs. The court is to look at the financial and logistical suitability of alternative custody arrangements and to assess the child’s preference. It is also to examine whether the parents will promote or thwart the child’s continuing relationships with the other. The Court will assess whether relocation enhances the quality of life for (a) the parent proposing it and (b) the children involved. The Court is to examine motivation of the parties and to consider whether there is any history of abuse as that term is defined in the Protection from Abuse law.

The party proposing the relocation has the burden of showing that the move will promote the best interests of the child under subsection (i). Each party has the burden of showing the integrity of their motives in the litigation and failure to provide reasonable notice may be considered as indicia of deceit. This may also result in a finding of contempt and/or an assessment of attorneys fees.

Finally, we now have a definition of “relocation” albeit a subjective one. Under Section 5322 it is a residence change that significantly impairs the ability of the non-relocating party to exercise custodial rights. Whereas the prior jurisdictional standards (i.e. out of county) have been substituted for an analysis relevant to the realities of geography – a move within a county may actually pose a greater impact on custody than a move out of state. Now, any relocation which affects the non-relocating parent’s custodial rights will be subject to this statute.

 Over the past few weeks, an interesting story emerged about a Michigan husband, Leon Walker, who is facing felony charges stemming from his use of his wife’s Gmail password to access her email account and learn about her extra-marital affair. Mr. Walker used his wife’s computer – which was kept in the house, used by Mr. Walker on a regular basis, and in the same location where she kept her passwords in a notebook labeled “passwords” – to access her emails and confirm his suspicions that she was having an affair with her ex-husband who had abused her and her child – it is quite a story.


Mr. Walker’s investigative efforts earned him a felony charge under a Michigan statute designed to combat identity theft. Mr. Walker’s trial is scheduled for February and, in addition to a privacy issue, it also raises the question of what constitutes good “pre-litigation discovery” in a family law case and what bleeds into criminal conduct.


While Pennsylvania has identity theft laws (18. Pa.C.S.A. § 4120), the law that more closely resembles the charge levied against Mr. Walker is 18 Pa.C.S.A. § 5703 which prohibits the intentional interception of wire, electronic, or oral communication. In short, § 5703 is Pennsylvania’s wiretapping law and it is classified as a third-degree felony (though the lowest of the felony classes, a third-degree felony carries a possible sentence up to seven years in prison).


Whether Pennsylvania’s wiretapping law would be used to prosecute someone accessing their spouse’s email is unclear. It is worth considering, however, whether accessing your spouse’s personal, password protected email account in order to obtain information is comparable to “intentionally [using]…the contents of…electronic communication…knowing…that the information was obtained through interception of a wire, electronic or oral communication” § 5703(3). 

Though this blog typically addresses current issues in Pennsylvania family law, I thought it was worth noting the passing of a long standing member of the Pennsylvania Senate, Senator Michael A. O’Pake.

Among his many accomplishments and legislative efforts, he authored or helped spear-head many laws pertaining to family law, including the adoption of no-fault divorces, the passage of the Children’s Protective Services law and Protection from Abuse Act, and Children’s Health Insurance Program (CHIP), which we discussed in a previous entry.


Senator O’Pake has had a lasting impact on the lives of Pennsylvanians and legal community.